Roberts Supreme Court Not a Friend of Free Speech

A legal expert has questioned the conventional wisdom that the U.S. Supreme Court led by Chief Justice John Roberts Jr. has been a strong proponent of free speech.

Monica Youn, a lawyer with the Brennan Center for Justice at the New York University School of Law, reviewed nearly 60 years of First Amendment decisions by the high court and concluded that since Roberts took charge, it has ruled in favor of the free speech side far less than during the three previous court eras.

From 2005 to 2011, the Roberts court ruled for the free speech claim about 34% of the time (out of 29 cases). Averaged together, the three prior courts found in favor of free speech 54% (based on 504 decisions).

The difference was most startling between the Roberts court and the one led by Chief Justice Earl Warren (1953 to 1969), which ruled 69% of the time for First Amendment advocates.

Floyd Abrams, a noted First Amendment lawyer, disagreed with Youn’s assessment. “Statistics cannot tell the story of the willingness of a court to defend free expression,” he told The New York Times. “Cases do. It is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this.”

To date, the Roberts courts has issued 10 pro-free-speech decisions—six of which involved campaign finance laws. “What really animates” the Roberts court, Erwin Chemerinsky wrote recently in The Arizona Law Review, “is a hostility to campaign finance laws much more than a commitment to expanding speech.”